Security National Bank of Sioux City v. St. Croix Power Co.

SibbeoKER, T. Upon the former appeal of this case it was determined that if plaintiff succeeded to the rights of the subcontractor with the consent of the principal contractor, the administratrix of Eobson’s estate, and the defendant as owner, then plaintiff stood as subcontractor in place of the deceased Eobson, and this “put the bank in the shoes of Eobson and constituted it, in truth and in fact, a subcontractor.” 117 Wis. 211, 94 N. W. 74. The plaintiff now claims the right to a subcontractor’s lien against defendant’s property as the party substituted for Eobson after his decease. Plaintiff and defendant assert conflicting claims as to whether the evidence establishes such a substitution. The court held that no such substitution was effected, and we are urged by plaintiff to reverse this conclusion of the court. It is, however, unnecessary to review this question in view of the conclusion we [376] find determinative of plaintiffs right to a recovery in this action. As indicated, tbe plaintiff asserts tbe right to a subcontractor’s lien under our statute because it has taken the place of Bobson under his contract with King. In this position it is bound by the covenants of the agreement thus assumed, and any rights arising from the execution of the contract by the completion of the flume must be determined under it. It was therein agreed: “The said builder [plaintiff] shall save and keep the improvement hereinbefore referred to and the lands on which it is situated free from any and all mechanics’ liens and other liens by reason of his work or of any materials or other things used therein; and if said builder fails so to do the owner may retain sufficient of the contract price to pay for the same and all costs by reason of or in consequence thereof, and may pay said lien or liens, if any, and costs, and deduct the amount thereof from said contract price.” The trial court held this to be an express waiver of the right of the builder to a mechanic’s lien upon the land and the improvements erected thereon. There is no contention but that the right to a mechanic’s lien may be waived by the parties (see Brzezinski v. Neeves, 93 Wis. 561, 67 N. W. 1125; 2 Jones, Liens (2d ed.) § 1500a; Murray v. Earle, 13 S. C. 87), but it is insisted that this provision in the agreement does not constitute1 such a waiver. The language employed, though not the most apt to express a waiver, points with reasonable certainty and directness to the conclusion that the builder was to protect and keep the premises free from all mechanics’ and other liens, and that this protection and freedom from liens was to extend to the builder’s work as well as to any claim for materials used. We think this the evident intention of the parties and the significance of the phraseology employed. By it the right of lien which the law would have awarded plaintiff was waived, and it is precluded from asserting such a claim. It is urged that only the principal contractor, King, can [377] insist upon the waiver, that he has refused to enforce this stipulation, and that his conduct shows acquiescence in plaintiff’s claim to a subcontractor’s lien. This position omits consideration of defendant’s rights, as owner of the property, to protection from claims affecting the title. When defendant, in October, 1899, took a conveyance of this property from King under the original contract, it had the right to rely on the promise that the costs of the improvements made thereon should not be made a claim against it, and that the Robson contract would be carried out in this respect. The plaintiff avers and the record shows that it proceeded with the work on the flume after Robson’s death with the assent of the adminis-tratrix, of King, and of the defendant, under the terms of the Robson contract, thus expressly affirming the waiver of the right to a lien. Under these circumstances neither King nor plaintiff can change their position upon this question, as they now seek to do, without injuriously affecting the rights off the defendant as owner of the premises. Parties will not be permitted to change their positions under such conditions to the prejudice and probable injury of another and thereby gain an advantage for themselves. 2 Parsons, Contracts (9th ed.) 961 (*790) et seq.; Hathaway v. Payne, 34 N. Y. 92, 109, and cases cited. To the same effect, Pabst B. Co. v. Milwaukee; ante, p. 110, 105 N. W. 563. We And nothing in the record to sustain the contention that defendant by its conduct in these particulars is estopped from insisting on the enforcement of this stipulation. It did nothing denying its validity or binding effect. Nothing occurred which could have influenced plaintiff to change its position or to forego any right in relation to the matters in controversy. The plaintiff being thus precluded from asserting any right of lien, all the questions raised and argued by counsel as to the sufficiency of the steps taken and as to its enforcement become, under the circumstances, immaterial, and need not be considered. It is claimed that defendant is liable to plaintiff for this [378] claim upon the ground that it agreed with King in the contract of July 13, 1900, and in the final settlement of February 26, 1901, to pay it for him. This relief was denied by the trial court upon the ground that defendant never promised or agreed with King or with the plaintiff to pay this claim,, and that it never assumed payment of any of King’s obliga-, tions which could be held to include plaintiff’s claim. This contention is negatived by the plain terms of the July agreement. Nothing obscure in its provisions necessitates resort to the circumstances under which it was made to enable the court to read the instrument in the way intended by the parties. Newell v. New Holstein C. Co. 119 Wis. 635, 97 N. W. 487. It is a clear statement of a settlement of the differences which had arisen between them as to the performance of their mutual obligations under the agreement of August 11, 1899,' modifying that contract in some particulars, providing for an advancement of money to King for work done, and expressly declaring that the agreement should in no way be deemed an acceptance of the work or material theretofore or thereafter-performed or furnished, and that the original contract should remain in force in all respects except in the particulars specified.- An examination of the terms of the settlement of February 26, 1901, shows an express agreement to the effect that King accepts the payment of the sum fixed by its terms, and that he undertakes to protect the defendant from all claims or-demands incurred by him in the installation of the plant,, with the exception of three items, only one of which, namely, the mechanic’s lien filed against the property of the defendant by the plaintiff as a subcontractor, has any relevancy to the controversies involved in this action. That plaintiff had no-rights against defendant under this lien claim has already been shown. We think the court held correctly that there was no assumption, by the defendant of King’s obligations as-claimed, and that no recovery by a third party can be upheld under the contracts upon the principle sustained in the cases [379] of Tweeddale v. Tweeddale, 116 Wis. 517, 93 N. W. 440; Rietzloff v. Glover, 91 Wis. 65, 64 N. W. 298; or Gilbert P. Co. v. Whiting P. Co. 123 Wis. 472, 102 N. W. 20. Upon plaintiff’s claim for extras the court found that the items of it were not incurred under the Eobson contract, but related to matters entirely outside its terms; that the extra work done and the materials furnished were at the request of defendant’s engineer, under a separate contract with the engineer, and that King never became obligated therefor. The pleadings set out no such claim, but it is sought to include these amounts as a part of the claim against King. The bill of exceptions shows that objections were properly taken to any evidence as to these items, and the trial court properly indicated in its legal conclusions that such evidence was erroneously received and should be so treated in the final result of the trial. This disposition of. the claim was proper, and the ruling must stand. No grounds for a personal judgment against defendant have been established. By the Court. — Judgment affirmed.